State v. Wallace

2017 Ohio 7385

Procedural entryThis page is a short order in State v. Wallace. Read the opinion of the Court — 2015 Ohio 4222 →

Ohio Court of Appeals·Decided August 30, 2017·No. wd-16-057·Published

Opinion

[Cite as State v. Wallace, 2017-Ohio-7385.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals Nos. WD-16-057

Appellee Trial Court Nos. 2016CR0260 v.

Thomas G. Wallace DECISION AND JUDGMENT

Appellant Decided: August 30, 2017

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Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Mollie B. Hojnicki-Mathieson, for appellant.

OSOWIK, J.

{¶ 1} This is an appeal from an October 14, 2016 judgment of the Wood County

Court of Common Pleas, sentencing appellant to two, consecutive three-year terms of

incarceration, following appellant’s guilty pleas to two, amended counts of sexual

battery, in violation of R.C. 2907.03, felonies of the third degree, for a total term of incarceration of six years. For the reasons set forth below, this court affirms the

judgment of the trial court.

{¶ 2} Appellant, Thomas Wallace, sets forth the following assignment of error:

Appellant’s Sentence is Contrary to Law.

{¶ 3} The following undisputed facts are relevant to this appeal. On June 2, 2016,

appellant was indicted on three counts of rape, in violation of R.C. 2907.02, felonies of

the first degree, and two counts of gross sexual imposition, in violation of R.C. 2907.05,

felonies of the fourth degree.

{¶ 4} The victim in this matter was appellant’s nephew, who was 14 years old

when these events commenced. On multiple occasions during 2015-2016, while alone

with his nephew, appellant showed the victim pornographic videos, performed oral sex

upon the victim, and engaged in various types of masturbation activities with the victim.

{¶ 5} After initially denying that he had committed these offenses, repeatedly

modifying his version of events, and attempting to attribute blame upon the victim,

appellant conceded to committing these crimes. The record shows that throughout this

matter, appellant has minimized the events and minimized his accountability.

{¶ 6} Ultimately, pursuant to a negotiated plea agreement, appellee amended two

of the three pending rape offenses to the lesser offenses of sexual battery, in violation of

R.C. 2907.03, felonies of the third degree. In exchange for guilty pleas on the two

reduced charges, the remaining three felony offenses were dismissed. The matter was

referred for a presentence investigation report.

2. {¶ 7} On October 14, 2016, the case proceeded to sentencing. At sentencing, the

trial court thoroughly delineated all of the requisite multiple factors to be taken into

consideration in reaching the disputed sentence. The trial court noted that appellant had

engaged in multiple instances of sexual conduct with his minor nephew over a span of

time, noted the serious harm sustained by the victim due to the victim’s age and the

seriousness of the conduct, noted appellant’s lack of remorse, lack of accountability, and

high risk of recidivism.

{¶ 8} Of particular relevance, the trial court stated at sentencing:

Due to the predatory nature of these offenses, the fact that you have

gotten a huge break from the State of Ohio dismissing the rape charges in

these cases, due to the lack of what the court feels to be genuine remorse in

these offenses, and the need to protect the public from future crimes, due to

your finding fault in the victim and failing to accept adult responsibility for

your offenses, the court at this time finds that those sentences should be

served consecutively. Consecutive sentences are necessary to protect the

public from future crimes and to punish you for these serious crimes, and

that consecutive sentences are not disproportionate to the seriousness of

your conduct and to the danger that you post to the public. And at least two

of these offenses were committed as part of one or more courses of conduct

and the harm caused by them was so great or unusual that no single prison

term would adequately reflect the seriousness of your conduct.

3. {¶ 9} The trial court then sentenced appellant to two, consecutive three-year terms

of incarceration, for a total term of incarceration of six years. This appeal ensued.

{¶ 10} In the sole assignment of error, appellant maintains that the consecutive

sentencing portion of the subject felony sentence is contrary to law. We do not concur.

{¶ 11} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, this

court set forth the appropriate appellate review to be conducted in felony sentence

appeals. Pursuant to R.C. 2953.08(G)(2), appellate courts may increase, reduce, modify,

or vacate and remand a disputed felony sentence if it clearly and convincingly finds that

either the record does not support relevant statutory findings or the sentence is otherwise

contrary to law. Tammerine at ¶ 11.

{¶ 12} As applied to the instant case, appellant specifically maintains that the

felony sentence in this matter was unlawful based upon appellant’s contention that the

trial court’s R.C. 2929.14(C)(4) determination that consecutive sentencing was necessary

to protect the public was incorrect.

{¶ 13} This court delineated proper R.C. 2929.14(C)(4) consecutive sentence

analysis in State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-1000. A three-step

analysis must be performed in order to determine whether a disputed consecutive

sentence was proper. First, the sentencing court must find that the sentence is necessary

to protect the public or punish the offender. Second, the sentencing court must find that

the consecutive sentence is not disproportionate to the seriousness of the conduct or the

danger posed to the public. Third, the sentencing court must find that either the offender

4. committed one of the offenses while awaiting trial or sentencing, while under sanction, or

while under post-release control for prior offense, or the offenses were committed as part

of one or more courses of conduct and no single prison term for any of the offenses

adequately reflects the seriousness of the conduct, or the offenders criminal history

demonstrates that a consecutive sentence is necessary to protect the public. Banks at

¶ 11.

{¶ 14} We have carefully reviewed and considered the sentencing transcript in this

matter in order to determine the propriety of the trial court’s R.C. 2929.14(C)(4)

consecutive sentencing determination. The sentencing transcript clearly reflects that the

trial court noted the serious harm inflicted upon the victim given the victim’s age and the

relationship between the parties. The sentencing transcript further reflects that the trial

court noted appellant’s predatory conduct, lack of remorse, and minimization of his

actions. Consistently, the trial court determined that a consecutive sentence was

necessary to protect the public and was not disproportionate to the seriousness of the

conduct.

{¶ 15} In conjunction with the above, the sentencing transcript further reflects that

the trial court noted, given the multiple occasions over an extended period of time during

which appellant committed these crimes, that the offenses were committed as part of a

course of conduct and that the harm caused was so great that a single prison term would

not adequately reflect the seriousness of the conduct.

5. {¶ 16} The record of evidence clearly refutes appellant’s position that the trial

court’s R.C.

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